Date: 20000906
Docket: IMM-5673-99
Between :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
RICHARD MCCORMACK
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is a judicial review application of the decision of the Appeal Division of the Immigration and Refugee Board (the IAD) dated October 29, 1999, wherein the IAD denied the Minister's application and quashed the deportation order issued to the respondent on August 24, 1990.
[2] The IAD relied on paragraph 70(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2, which is a discretionary provision, to quash the removal order. Subsection 70(1) states:
| 70. (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
| (a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and |
| (b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. |
|
70. (1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants :
| a) question de droit, de fait ou mixte; |
| b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada. |
|
[3] The Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, analyzed the concept of discretion as follows at pages 852 to 854:
| The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries. . . . |
| . . . In my opinion, these doctrines incorporate two central ideas - that discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker's jurisdiction. These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law ([1959] S.C.R. 121">Roncarelli v. Duplessis, [1959] S.C.R. 121), in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038). |
It then went on to apply the reasonableness simpliciter standard in relation to subsection 114(2) of the Immigration Act. It is the same standard that should be applied herein.
[4] The Federal Court of Appeal held in Chieu v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 605, at page 614:
| The wording of paragraph 70(1)(b), viewed in total context, must be interpreted in this way. That section permits the Board to consider whether a removal order or conditional removal order made against a permanent resident should be quashed or stayed on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. The Board is instructed to consider the validity and equity of the removal order. The question is: Should this person be removed or not? . . . |
| . . . the IRB(AD) may, indeed must, consider broadly all the circumstances of the case in order to determine whether the deportation order was properly and equitably made. These considerations may include but would not be limited to such matters as: |
| - the seriousness of the offence leading to deportation; |
| - the possibility of rehabilitation (if a crime is involved); |
| - the impact of the crime (if crime is involved) on the victim; |
| - the remorsefulness of the applicant (if crime is involved); |
| - the length of time spent in Canada and the degree to which the appellant is established here; |
| - the presence of family in Canada and the impact on it that deportation would cause; |
| - efforts of the applicant to establish himself or herself in Canada, including employment and education; and, |
| - support available to the applicant, not only within the family but also within the community. |
[5] In the case at bar, after concluding that the respondent breached his terms and conditions, the IAD reviewed the circumstances of the case and concluded that the respondent should not be removed. In my view, such a conclusion was reasonably open to it based on the evidence adduced. The applicant pointed out a few factual errors in the decision, which, in the context of the evidence taken as a whole, I do not consider to be material errors. In such a context, considering the above applicable principles stated by the Supreme Court of Canada and by the Federal Court of Appeal, the intervention of this Court is unwarranted.
[6] Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
September 6, 2000
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